Few people want strangers or acquaintances to know the details of their divorce, especially details relating to the demise of their marriage, sensitive financial matters, business matters or parenting. Some information in a court’s file, like financial affidavits and qualified domestic relations orders, are automatically protected from disclosure. However, absent special circumstances, most documents in a court’s divorce file, including parenting plans, final decrees, motions, objections, and exhibits are accessible to the public. Divorce-related hearings are open to the public. Both the New Hampshire Constitution and the United States Constitution guarantee the public a right of access to the courts. This right of access is intended to ensure a fair, predictable, unbiased, and trustworthy justice system. Unfortunately, it may result in unwelcome intrusion since it also means that, except in a few limited circumstances, anyone can attend hearings and review court files.
If a matter is litigated, absent a protective order, pleadings and exhibits concerning sensitive personal and business matters may be accessible to reporters, neighbors, family, friends, employees, colleagues, competitors, business contacts, and all members of the general public. Conversely, in cases resolved through alternative dispute resolution (i.e. negotiation, mediation, collaborative law, or arbitration), only the final settlement documents, generally devoid of allegations and harmful content, are available in the public file. This is one of many reasons why public figures and highly visible individuals typically choose an alternative dispute resolution process for divorce. In fact, most individuals would benefit from alternative dispute resolution, which is why courts generally require divorce litigants to participate in mediation and/or neutral case evaluation.
While there are ways to protect sensitive information from review by others during or after the divorce process (such as confidentiality agreements, protective orders, and requests to seal files) there are no guarantees at the outset that such means will be effective. Counsel can request a protective order, including an order to seal the divorce file or parts of the file and protect the file from public inspection. However, a court may decide to protect or seal all the file, some of it or none of it. The determination is largely within the court’s discretion. Mere fame, prominence, wealth, or notoriety alone will not suffice as a basis. Even an agreement by all parties to seal a file is not, in and of itself, sufficient to seal a file.
A party seeking to seal records and pleadings must present a sufficiently compelling interest, meaning a special circumstance or other overriding consideration, and then explain why there is no reasonable alternative to non-disclosure. If the party seeking a protective order can meet this burden, then the court must employ the least restrictive means of limiting public access. That may mean sealing part of a file, instead of all of it. Unfortunately, even if trial exhibits or other sensitive information is sealed, it is possible for a third party to meet the legal burden to unseal the documents. The best protection for private information is to avoid or minimize submission of the information, to the extent possible, for example by achieving resolution of the dispute through alternative dispute resolution (i.e. negotiation, mediation, collaborative law, or arbitration).
If both parties agree that certain information should not be shared in the public domain, confidentiality agreements are often employed to memorialize the agreement and ensure that all participants understand, agree upon and adhere to the terms. Confidentiality agreements are legally binding contracts often signed by the parties, attorneys and involved experts. Such agreements specifically detail the types of information that will be disclosed and how the information will be kept confidential by the participants in the process. Some agreements govern the means by which such information can be reviewed, shared within the litigation and maintained. The agreements are enforceable and violation of them may lead to penalties for the breaching party.
While there is no guarantee of privacy in divorce, the options above may allow parties to protect their personal information. Such protections reduce anxiety about public discussion of private matters, threats to family members, identity theft, or reputational damage that may otherwise be inflicted by divorce of a public figure.